Green v. Wilbur

The plaintiff denies that Wilbur has been lawfully discharged, within the condition of the bond given pursuant to the Rev. Sts. c. 97, § 63, and now in suit. It is objected, in the first place, that the citation, which was served on the plaintiff, was insufficient, because it did not correctly describe the execution on which Wilbur was committed. The citation referred to the accompanying representation made by Wilbur to the jailer, and by the jailer to the justice who issued it; and the execution was therein described as having issued from the court of common pleas held at "Taunton, on the second Monday of September, 1850, when the judgment was rendered. In fact, the execution, which was an alias, issued on the 25th of January, 1851. It was, therefore, not literally true that the execution issued from the court held in September; and very few executions do issue, while the court is in session. The description would have been just as objectionable as it now is, if it had issued on any day in September, after the court adjourned. But it is impossible that the plaintiff could have been misled, or could have been left in doubt as to the real judgment and execution. As was said by the court, in Bussey v. Briggs, 2 Met. 132, “ undoubtedly the creditor is entitled to the notice required by law; but a mere verbal variance, which could not mislead him, or create a doubt as to the object of the citation, ought not, we think, to vitiate the proceedings. Such great strictness is not required to protect the interests of the creditor, and might frequently do great injustice to the debtor.” See also Leach v. Hill, 3 Met. 173; Osgood v. Hutchins, 6 N. Hamp. 374.

It is further objected, that the citation did not correctly state the sum for which Wilbur stood committed. It appears from a copy of the execution and the return thereon, that the plaintiff recovered judgment for sixty-two dollars sixty-five cents damage, and seven dollars eighty cents, costs of suit; that the costs of commitment were four dollars twenty-five *442cents; and that fifty cents were added, for the execution that had been first taken out, and for the alias. The aggregate of these sums was seventy-five dollars twenty cents, the exact amount for which the citation stated that Wilbur stood committed. But the plaintiff insists, that Wilbur stood committed for interest on the judgment, in addition to the damage and costs, because St. 1847, c. 153, provides that all judgments for the payment of money shall be on interest from the day when they are rendered, and that executions issuing on them shall command the officer to satisfy them in full, with interest thereon. And it is said, that one dollar seventy-four cents was the amount of interest that had accrued when the debtor was committed, and therefore the citation should have stated that he stood committed for seventy-six dollars ninety-four cents, instead of seventy-five dollars twenty cents. But the answer to the preceding objection is an answer to this. The plaintiff could not have doubted the identity of the judgment and execution on which his debtor stood committed. He knew that his judgment was on interest, and how much interest had accrued on it without being informed by the citation.

The remaining objection to the legality of Wilbur’s discharge is, that the jailer did not discharge him. This objection is founded on the provisions of Rev. Sts. c. 98, § 10, 11. Section 10 requires that the justices, who administer the poor debtors’ oath, shall make a certificate thereof, addressed to the jailer; and section 11 directs that “the jailer, upon receiving the said certificate, shall forthwith discharge the prisoner, so far as he is held in prison on the execution therein mentioned.” The provision in St. 1787, c. 29, § 2, was, that the certificate of the justices being made to the jailer, he should “ thereupon set the prisoner at liberty.” The words of the two statutes are slightly different; but the meaning is the same. And it is manifest that, in the Revised Statutes, they apply to debtors in close custody; “held in prison;” of whom the jailer has the charge. This is further manifest from § 12 of c. 98, which directs that “ if the justices,” who by § 5, may examine the debtor at any place within the limits of the prison, “ shall not *443be satisfied that he is entitled to his discharge, he shall be remanded to the prison.” But the debtor, in the present case, was not held in prison, nor could the justices have remanded him to the prison. He was on the prison limits; having given the bond in suit, conditioned not to go out of those limits until he should be lawfully discharged, and to surrender himself to the jailer, to be held in close confinement, if he should not be lawfully discharged within ninety days from the day of his commitment. And the breach of this condition, which is alleged in the statement of facts, is, that he did not surrender himself to the jailer for the purpose of being committed to close confinement. The question therefore is, whether he was lawfully discharged within ninety days. And we have no doubt that he was. The certificate of the justices, that they had administered the poor debtors’ oath to him, was delivered to the jailer, “ but he did nothing further in the matter.” And there was nothing further for him to do. It does not appear whether the certificate was delivered to the jailer within ninety days; nor do we deem it material. We cannot suppose that the delivery of it to him, at any time, is a condition precedent to a debtor’s discharge, even if he is in close confinement. Still less is it a condition precedent to the performance, by a debtor, of the condition of a bond given for the liberty of the prison limits. In Kendrick v. Gregory, 9 Greenl. 22, it was decided that the condition of such a bond is saved, if not previously broken, as soon as the debtor is lawfully admitted to the poor debtors’ oath. This decision was made on a statute of Maine, of which the provisions, as to the oath of the debtor, and the certificate of the justices, were a transcript of our St. of 1787, c. 29, § 2, already mentioned, and the meaning of which, as we have before said, is the same as that of Rev. Sts. e. 98, § 10. The reasons given for that decision are entirely satisfactory. See also Murray v. Neally, 2 Fairf. 238. Judgment for the defendants.